A Research Of Public Nuisance In The Common Law System

With the progress of society,the role of government in Administrative Law undergoes a revolutionary change.It transforms from a traditional negative nightwatchman to a modern positive regulator.Along with the rapid development of productive forces are new problems it brings,like environmental pollution,the bulk of consumer disputes and other serious threats to public interests.Under this context,it becomes very important to combine the transformation of government functions to new social problems,to make timely political superstructure to adapt to social development,and to take advantage of the dominant position with a wide range of functions of government to safeguard public interests.To defend the public interests,different countries choose different methods.There maintains an ancient yet timeless regime in Anglo-American law system-public nuisance regime,which endows certain organizations or persons the right to relieve the damaged public interests by acts of self,public nuisance lawsuits and criminal charges.And with centuries’ developments,it tends to improve gradually,and plays an active role.However,the public interest litigation was clearly defined by law until recent years to safeguard the public interest in our country,and it has far from reached the desired effect.Through a comparative study,we find that public nuisance lawsuit which is the core of the public nuisance regime shares the same fundamental purpose with public interest litigation,and they also have something in common in specific applications.Thus it is both necessary and feasible to absorb the beneficial ingredients of public nuisance litigation to perfect our public interest litigation.This article consists of four main parts:The first part starts from the definition of nuisance and public nuisance,then introduces the origin and development of public nuisance regime in the Anglo-American system.The establishment and improvement of this regime are inseparable with the expanded explanation of public nuisance.This part also briefly summaries some new trends of the regime when in face of the modern new environment;The second part explains the theoretical basis of public nuisance regime giving government and certain persons the right to file a lawsuit from four aspects:the police power,the parental rights of State,the complement to political failures and "where is a right,there is a relief’.It also summarizes the controversies caused by the regime in the academic community and explains the disputes;The third part elaborates the specific application rules of public nuisance lawsuit-the core of public nuisance regime.The rules include the prosecution,the defendant objects,causes of action and remedies.This part focuses on the cause of action which composed of five main elements:an unreasonable intrusion,the violation of public rights,controlling factors,causality and special damages.This part also studies the application of public nuisance lawsuit in the new-type cases(mainly the environmental pollution cases and special product damage cases)by the analysis and research of specific cases;The forth part withdraws the view to domestic perspective.Through the study we find that compared to public nuisance regime,the existing system defending the public interests in domestic is lack of protection and poor in relief.This part also demonstrates the breakthrough of constructing the public nuisance regime in our system lies in perfect the existing public interest litigation by absorbing reasonable elements of public nuisance lawsuit,such as extending the plaintiff qualification,broadening the scope of public interest and bringing the role of courts to play.Only in this way can public interest litigation really play a proper role in safeguarding the public interests.